Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness McIntosh of Pickering and Lord Thomas of Gresford

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is always stimulating to follow the noble Lord, Lord Rooker—although I disagree with him, which is unusual. I add my support to the amendments in this group which seek to ensure that immunity from criminal and civil liability for criminal acts cannot be given by the authoriser or controller of covert agents—including “police spies”, as the noble Baroness, Lady Jones, would have them—simply on his own initiative. I adopt all that has been said by previous speakers in favour of these amendments.

I know something of the current status to which the noble Lord, Lord Rooker, referred. I took part in the trial of a covert agent held in camera over many weeks. He was convicted of going beyond his authorisation, and he was not given immunity—nor, in my view, should he have been. I shall focus, however, on Amendment 22, which seeks to ensure that victims of violent crime are not rendered ineligible for criminal injuries compensation by reason of the fact that the crime was the subject of a criminal conduct authorisation.

I had seven years’ experience on the Criminal Injuries Compensation Board when it was non-statutory. I supported the scheme because it recognised the duty on the state to compensate victims of crime and did so fairly, having regard to a number of factors, including the degree to which the victim might himself have been culpable in bringing the injuries upon himself.

In 1983, Mrs Thatcher’s Government promoted and ratified the European Convention on the Compensation of Victims of Violent Crimes. Article 2 provides that the state shall compensate

“those who have sustained serious bodily injury or impairment of health directly attributable to an intentional crime of violence”.

It further provides that

“the dependants of persons who have died as a result of such crime”

shall be similarly compensated. The second paragraph of Article 2 states:

“Compensation shall be awarded … even if the offender cannot be prosecuted or punished.”


To my mind, that fully covers the position we are discussing in Amendment 22 and helps deal with the doubts expressed by the noble Lord, Lord Dubs. The European convention is made not by an institution of the European Union but by the Council of Europe, which we helped found in 1949 and of which 47 states are members, including Russia.

Of course, the institution of the European Convention on Human Rights is also governed by the Council of Europe, and it has been under attack by the Conservative Government. As I mentioned in my small contribution to the debate on the deal last Friday, the Government face a difficulty if their independent commission recommends that we resile from that convention. Article 136 of Title XII of Part 3 of the UK/EU deal provides that in the event the UK Government “denounced” the European covenant on human rights, all the security provisions—co-operation on the exchange of data, extradition arrangements, and so forth—which are set out in Part 3 would automatically cease to have force. It is not merely giving grounds for the EU to terminate these arrangements: they automatically expire. But there is nothing in the deal about the European Convention on the Compensation of Victims of Violent Crimes, and I assume that it will still be in full force.

Despite the Government’s attitude towards treaties and institutions in Europe, I sincerely hope that they will accept Amendment 22 on the basis that it is essential if the UK is to abide by the terms of the convention and for the compensation of victims of crime that it requires to be paid.

Of course, the criminal injuries scheme is for physical injuries, as it says on the box. It is perfectly possible that the crimes authorised under these provisions would cause financial harm. That is the purpose of Amendment 32: to ensure that the Investigatory Powers Commissioner would be able to award compensation to victims of financial fraud. This is the other side of the coin, and I support it. Perhaps I may join the noble Lord, Lord Anderson, in examining the teeth of the gift horse which the Government offered this morning in their response to the Joint Committee on Human Rights.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am delighted to follow the noble Lord, who speaks with great authority and experience in these matters. Although I do not always agree with the noble Baroness, Lady Chakrabarti, I will defend her right to say what she thinks and table her amendments to the hilt.

I support the sentiments behind Amendment 22, as expressed so eloquently by the noble Lord, Lord Anderson. I hope that, in summing up, my noble friend the Minister will clarify the Government’s position and perhaps come up with some thoughts and words from them. I take this opportunity to thank my noble friend for her letter last week and for the personal briefing that she kindly arranged for me on aspects of the Bill about which I had concerns. I am very grateful for that.

However, my noble friend’s letter makes no reference to the question of criminal injuries and compensation for victims of violent crime where the crime has been committed through activity that is the subject of a criminal conduct authorisation. My starting point on this issue was referred to by the noble Lords, Lord Dubs and Lord Anderson: paragraphs 15 and 16 of the original report, the scrutiny undertaken by the Joint Committee on Human Rights in November last year and the Government’s response, which I confess I have not had time to digest in full.

The real issue here is that we are granting immunity from prosecution to those who carry out actions and behaviour under the Bill. That leaves the question of the ramifications for victims who suffer in the circumstances outlined by noble Lords, which I do not need to repeat. I will take this opportunity, if I may, to gently nudge my noble friend the Minister to go further—as requested by the noble Lord, Lord Anderson, and others—and explain specifically the position of victims of what is currently considered a crime but would be granted immunity under this Bill. For example, a person may have been severely injured and requires compensation, as would normally be the case through recourse to the Criminal Injuries Compensation Authority.

I believe that this is a grey area that should be tidied up before the Bill leaves Parliament. I hope that my noble friend will meet the requirement to seek satisfaction and clarification in this regard.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness McIntosh of Pickering and Lord Thomas of Gresford

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, obviously, a government agency cannot grant to an individual immunity from prosecution by a foreign power for offences committed on its soil—a point made strongly a moment ago by the noble Baroness, Lady Ritchie, who referred to the comments of a Minister in the Dáil. One understands the particular sensitivities in Ireland.

We are dealing with offences for which this country has extraterritorial jurisdiction, of which there are not many. At the moment, these offences consist of murder, manslaughter, crimes against humanity, torture and sexual offences where the victim of the crime is under 18. Under the Council of Europe’s Convention on preventing and combating violence against women and domestic violence—the Istanbul Convention—the Government, in a paper published on 17 August 2020, indicated that they will extend the jurisdiction of the courts of this country to sexual offences committed against persons over the age of 18 and to domestic abuse.

Given that that is the current extension of extraterritorial offences, I would like the Minister to outline which of them any government agency would authorise. A current highly offensive issue that has been referred to many times this afternoon is that of covert policemen entering into relationships with individuals from whom they seek to extract information or to ingratiate themselves with a group under surveillance. That amounts to the offence of sexual intercourse without consent—another definition of rape. Is there a licence to kill, effectively to rape or to torture in overseas jurisdictions? Should there be? Would we be happy to see such immunities enjoyed by agents of a foreign power in this country? I suspect not.

As for the protection of the European Convention on Human Rights, I recall from my experience in the Baha Mousa case the vociferous complaints made by Lieutenant-Colonel Nicholas Mercer, the senior legal adviser in Iraq in 2003, all the way to the top of the Ministry of Defence, against the torture of prisoners by hooding and the use of stress positions against prisoners. These matters had been outlawed in Ireland. He said such conduct was against the European convention and was told that the Attorney-General of the day had advised otherwise, and if he were right, the senior civil servant told him, he should be Attorney-General himself. Of course, the Supreme Court later held that Lieutenant-Colonel Mercer was right that the convention did apply. Right-wing elements on the Government Benches have grumbled ever since about “lawfare”. That is a fight for another day. Their argument that squaddies should be allowed to torture without risk of prosecution or civil liability is for a Bill which will soon be heading towards us. But does this Bill permit such conduct to be authorised for covert agents? I ask the Minister specifically to reply to that point.

[Baroness McIntosh of Pickering (Con)]

My Lords, I lend my support to Amendment 7 as a probing amendment, which was so eloquently moved by the noble Baroness, Lady Ritchie of Downpatrick. I have a very simple question for my noble friend Lady Williams. Is it an unintended consequence of the Bill that it may inadvertently have extraterritorial effects reaching beyond its original intention? That possibly goes to the heart of one of the conclusions of the legislative scrutiny performed by the Joint Committee on Human Rights, which says at paragraph 52:

“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”


I therefore believe that the noble Baroness, Lady Ritchie of Downpatrick, has raised genuine issues of concern, as there are in Amendment 9, and I am sure that my noble friend will wish to put their minds at rest.

Agriculture Bill

Debate between Baroness McIntosh of Pickering and Lord Thomas of Gresford

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Thursday 17th September 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, these powers under Chapter 2 of Part 2 of the Bill make a declaration that exceptional market conditions which trigger financial assistance of a varying kind are to be exercised by the English Minister by way of regulations made under the negative procedure. That means that they will escape extensive parliamentary scrutiny, as we are well aware.

The sort of market conditions that Clause 18 has in mind is where there is a severe disturbance or a threat of such disturbance to agricultural markets that would have such a significantly adverse effect on producers in England as to constitute exceptional market conditions. That is to be judged by the limited criterion of the prices farmers receive for the sale of their agricultural produce. It is made clear in the Explanatory Notes that the devolved Administrations in Wales and Scotland have the ability, under their devolved powers, to make similar arrangements within their own jurisdictions. The noble Baronesses, Lady Ritchie of Downpatrick and Lady Bennett, have outlined the unsatisfactory position in Northern Ireland, and I support their call for clarity. However, I suppose that that is the reason it is thought these clauses do not require legislative consent from the Welsh Senedd or the Scottish Parliament —let them do their own thing.

But of course, if exceptional market conditions exist in England, they are bound to have an effect, certainly in the borders of Wales that I know best. I recall that Welshpool was once the largest market for sheep in Europe, but there are equally strong markets in both Oswestry and Shrewsbury, and what happens in one affects the others. I remember that when I was chair of Marcher Sound, broadcasting to north Wales and Cheshire, our farming report every morning at six o’clock broadcast the price of hoggets in markets on both sides of the border. This was vital early intelligence as I headed for the London train.

It seems common sense that introducing financial assistance to English farmers under Chapter 2 would have a vital effect on prices and risk unfair competition. Moreover, agriculture is a significant part of both the Welsh and Scottish economies, as the noble Lord, Lord Bruce of Bennachie, pointed out. Surely decisions of this nature should be subject to consultation with, and consent by, the devolved nations. I have no knowledge of the markets of Carlisle and Berwick, but I have no doubt that there would be serious financial implications for those agricultural markets, and equally for those in Northern Ireland.

It may be suggested that exceptional market conditions could be so exceptional that an English Secretary of State would have to move quickly with no time for consultation, but surely he would move and should move in step with the devolved Administrations, and certainly not with any of the belligerence to which my noble friend Lady Humphreys referred.

The Minister will recall that, at the Second Reading and Committee stages of this Bill, I raised the issue of internal markets and price stability, not knowing that the now infamous Internal Market Bill was about to be unveiled to the world. Did the devolved Administrations know of the contents of that Bill? Their alarmed reaction demonstrates that they did not. It is a Bill that is perceived to be a unilateral grab at former EU powers which ought to be directed immediately to the devolved Administrations, and I promise that I will not even mention the attack on the rule of law.

The Government sometimes tell us that we have already left the EU, so get over it. Well, devolution is a fact of 20 years’ standing, and it is about time that the Government understood that one of its main implications is the need for consultation and consent. There is a limit to the extent to which lack of time can be pushed when there is no consultation. As the whole country knows, the reason for the rush and haste and us being here until midnight discussing this Bill is due to the hazard which this Government chose to construct for themselves. I support Amendments 60 and 92 in this group, and I look forward to the Minister’s response.

[Baroness McIntosh of Pickering (Con)]

I should like to speak to Amendment 109 in this group and I congratulate the noble Baroness, Lady Ritchie of Downpatrick, on bringing this point to the attention of the House. This part of the Bill, which concerns the devolved nations, is a particularly grey area as regards how it is to be administered. The noble Baroness and the authors of other amendments in this group have done the House a service by throwing light on these issues. I had hoped to put my name to Amendment 109, but I was not surprised to see how much support the noble Baroness, Lady Ritchie, has had.

I want to pay tribute to the noble Baroness’s work in this regard. She is a former Member of and was a Minister in the Northern Ireland Assembly and she was a great support to me in the Select Committee on Environment, Food and Rural Affairs in the other place. Rather unnervingly, she was always in her seat before I took my place, which is a little disconcerting when you are chairing a committee. I am sure that she will play a prominent and active role in the new Select Committee on Common Frameworks Scrutiny, to which she has just been appointed, and I congratulate her on that.

I hope that my noble friend the Minister will have regard to the concerns that have been raised in this group of amendments. He and I have had conversations before on the common frameworks and what progress has been made on them, so I will pay close attention to his response. Once again, I thank the noble Baroness, Lady Ritchie, for bringing forward her amendment in this group.

Agriculture Bill

Debate between Baroness McIntosh of Pickering and Lord Thomas of Gresford

Committee stage & Committee: 6th sitting (Hansard) & Committee: 6th sitting (Hansard): House of Lords
Thursday 23rd July 2020 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I associate myself with the amendments in the names of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Wigley, and also with the remarks of the noble and learned Lords, Lord Hope and Lord Wallace. I am proud of the fact that I am a non-practising advocate, so I maintain an interest in matters north of the border.

As I entirely endorse the comments that the noble and learned Lords have made, I want to ask my noble friend a specific question with regard to the consultation that is asked for under these amendments. With regard to Amendment 291, I associate myself with the request from the noble Lord, Lord Wigley, for a UK framework for agriculture. What form will the consultation on these regulations take? Presumably, the regulations must be relatively far advanced, so when would my noble friend expect the consultation to commence? In reply, can he take the opportunity to inform us what developments there have been on the common frameworks? I understand that, originally, there were to be 24; we now hear word that there will be only three. They are absolutely key to this part of the Bill and to ensuring good faith—I know my noble friend likes to use the phrase “bona fides”—between the four parts of the United Kingdom. With those few words, I support the amendments in this group.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I am disappointed, like the noble Lord, Lord Wigley, that Amendments 290 and 291 have been regrouped with others in this group. I was looking forward to a full delineation by the Minister of the way forward envisaged by the Government in creating some body in which the four nations could thrash out the common framework of a single market for the United Kingdom. As I have said earlier in Committee, the agricultural systems of the four nations are bound to diverge, not just because the devolved Administrations are governed by different political parties that may have different aims, policies and ideas, but because of the very diverse nature of their landscapes and communities.

Looking at it broadly, there are two main issues: how funding will be distributed between the four nations, and to what degree divergence is compatible with the single market. My concern is that Wales does not lose its current share of UK funding of 16%. Indeed, it should have a greater share. Mr Michael Gove, addressing the Rural Economy and Connectivity Committee of the Scottish Parliament on 27 June 2018, said that

“it is in the nature of the landscape and the environment in Scotland—and also in other parts of the United Kingdom—that the preponderance of less-favoured areas and the nature of upland farming impose particular challenges that require a specific level of support … we need to look in the future at how we allocate funding across the United Kingdom in order to reflect that … My aim … is to ensure that, in the future, we allocate funding in a way that is sensitive to the specific needs of each part of the United Kingdom.”

The United Kingdom Government have guaranteed continued funding of Pillar 1 of the CAP until 2022 and, as we discussed the other day, the continuation of rural development programmes under Pillar 2 of the CAP until contracts come to an end, at the latest in 2023. But what happens then? Farming is not an industry in which capital can be quickly switched from one sector to another. It requires long-term planning, which can be achieved only by clarity on future funding. As for divergence, there should be agreed common standards for animal health, traceability, animal welfare, breeding and trading in animals, fertilisers and the like. What divergence of support in specific areas would be compatible with a single UK market?

There is no issue that there must be some forum—a forum for consent, as my noble and learned friend Lord Wallace argued a moment ago—in which these questions can be resolved. It would be quite unacceptable and in breach of the principles of devolution for decisions to be made by some Whitehall diktat. Indeed, the Joint Ministerial Committee (EU Negotiations) already agreed in October 2017 that common frameworks will be established, to

“enable the functioning of the UK internal market … ensure compliance with international obligations … enable the management of common resources”,

and to

“administer and provide access to justice in cases with a cross-border element”.

It also agreed to

“safeguard the security of the UK”—

in this context, I take it that means food security. However, nothing in the framework of the Bill requires or creates any mechanism, whether by secondary legislation or otherwise, for such a body.

Two alternative approaches are set out in Amendments 290 and 291. Each has their advantages but there really is a hole in the Bill, as I said at Second Reading, which the Government ought to fill themselves. It is no longer satisfactory to be told that civil servants are working away at this—I hope we do not hear that today. We need a commitment to the creation of a forum for negotiation and co-operation, as my noble friend Lord Alderdice said, and it needs to be written into the Bill.

Civil Procedure (Amendment) (EU Exit) Rules 2019

Debate between Baroness McIntosh of Pickering and Lord Thomas of Gresford

Monday 25th February 2019 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

I am not outraged. I welcome the statutory instrument. I have merely a factual question to put to the Minister. Paragraph 3.4 on page 1 of the Explanatory Memorandum says:

“In the view of the Department, for the purposes of Standing Order … the subject matter of this entire instrument would be within the devolved legislative competence of the Scottish Parliament if equivalent provision in relation to Scotland were included in the Act of the Scottish Parliament”.


My understanding is that the current legislation is governed by the regulations adopted in Scotland in 2017. Can the Minister tell us how the department in question reached that conclusion, and what discussions were had with the relevant department and with the Scottish Parliament itself before bringing forward the statutory instrument today?

[Lord Thomas of Gresford (LD)]

My Lords, closed material procedures were introduced by the Labour Government around 2008—or possibly before then—when they were subject to considerable controversy and discussion. They were introduced for a number of named, specialist tribunals in the context of terrorism; the applicability of closed material procedures in cases that involved the safety of the public were obviously a matter of balance as to where the public interest lay.

Since then, these procedures have crept in scope—the noble and learned Lord, Lord Hope, used that expression in one of the cases to have been decided in relation to them. There was great controversy as to whether a court of appeal should hold proceedings with closed material procedures in place. The Supreme Court has now come round to them but was very reluctant to do so. The creep of the scope has now extended to the challenges to sanctions decisions. As the Explanatory Memorandum makes clear, this will be the first instance of the use of the powers in Sections 66 to 68 of the Counter-Terrorism Act 2008 in the context of sanctions.

It is unfortunate that a Minister who is challenged on a decision that he has made with material in front of him, can go to the court and say, “We must have in place these closed material procedures so that the person who is challenging my decision never sees the full basis upon which that decision was made”. A special advocate is then brought in to represent his interests—but I think it is regarded by all as a very unsatisfactory way of doing justice and carrying out the duties of the court.